RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1200005 SEPARATION DATE: 20050831

BOARD DATE: 20120419

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized reservist, SPC/E-4, 42L10/Educational Services Specialist, medically separated for asthma. He did not respond adequately to treatment and was unable to perform within his Military Occupational Specialty (MOS), meet worldwide deployment standards or meet physical fitness standards. He was issued a permanent P3 profile and underwent a Medical Evaluation Board (MEB). Asthma was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions appeared on the MEB’s submission. Other conditions included in the Disability Evaluation System (DES) packet will be discussed below. The PEB adjudicated the asthma condition as unfitting, further concluded there was sufficient evidence to substantiate it existed prior to service (EPTS) and found no evidence that the condition was permanently service aggravated. The CI appealed to the Formal PEB (FPEB) who adjudicated the asthma condition as permanently aggravated while deployed to Iraq and rated it 30% for daily bronchodilator therapy and subtracted 10% for childhood asthmatic condition IAW AR 635-40 B-10. The CI was then medically separated with a 20% combined disability rating.

CI CONTENTION: “The PEB findings came to an unsubstantiated finding by deducting 10% for childhood asthma. The decision was made without a shred of medical documentation.” There is nothing noted in the veteran's Entrance Exam where he was found to be fit for worldwide duty nor in four other references cited by the CI where there is documentation of a presumption of fitness/soundness upon entrance into the military. “The Med Board did not consider other issues related to the veteran's active duty service in a combat theater to include PTSD. Veteran repaid all severance pay received from the military which negated the 20% severance pay granted by the military. The VA award of 30% would have been retroactive to date of discharge if the veteran appealed the initially rating in a timely manner. Fourteen days separated the increased rating from the initially rating. The veteran met the criteria for the 30% in his initial claim. The VA medical records will attest to the fact the veteran was prescribed daily inhalation medication for the asthma condition. He was prescribed three inhalation medication(s) one of which was on an as needed basis the other two prescriptions were prescribed for DAILY usage. The recoupment of the severance pay had an adverse effect on the veteran as it related to the VA compensation. The recoupment of the severance pay was an issue that exacerbated the veteran's PTSD condition.” He additionally lists all of his VA conditions and ratings as per the rating chart below. A contention for their inclusion in the separation rating is therefore implied.

RATING COMPARISON:

*increased to 30% effective 20060914 for combined 30%.

**combined increased to 70% effective 20061206 with rating PTSD at 50%.

ANALYSIS SUMMARY: The Board acknowledges the CI’s assertions that a service medical error which documented a history of childhood asthma was responsible for the reduced disability rating from the FPEB. It must be noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to allegations regarding suspected service improprieties or faulty medical care. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB disability ratings and fitness determinations as elaborated above. The Board also acknowledges the CI's contention suggesting that ratings should have been conferred for conditions not diagnosed while in the service but later determined to be service-connected by the Department of Veterans’ Affairs (DVA). While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. The DVA, however, is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Asthma Condition. The CI was aeromedically evacuated from Iraq in late April 2005 for an asthma exacerbation with persistent wheezing that had been unresponsive to treatment to include prolonged use of steroids, inhalers and antibiotics. While in theater he had a well documented internal medicine consult that reflected a historical account of the CI’s prior asthma history to include; pneumonia six times while in childhood, use of theodur sprinkles, Albuterol at least monthly while in high school and steroid courses. His triggers included upper respiratory infections, occasional exercise and sleep. The theater sick call records, aeromedical summary, and a Lanstuhl service treatment record (STR) completed by different care providers also corroborated the childhood asthma history. Upon return to Walter Reed Medical Center, he was thoroughly evaluated for asthma which included a pulmonary consult, and laboratory, radiographic and specific asthma tests. The pulmonologist initially documented a past history of asthma but lined through this entry and specifically stated “no problems as teen or as child, was not diagnosed with asthma as child.” In the pulmonary addendum completed by the same pulmonologist, documented “we do not think that his asthma was a pre-existing condition, he may have had several upper respiratory infections as a child and he may have been given an inhaler, but his history is not consistent with childhood asthma.” His profile limitations included; inability to wear protective mask and all chemical defense equipment, to do 3-5 second rushes under direct and indirect fire, and had a medical condition that prevented deployment. There were two pulmonary evaluations in evidence documenting the ratable parameters which the Board weighed in arriving at its rating recommendation. These exams are summarized in the chart below:

*Based on daily medication use

At the time of the narrative summary (NARSUM) conducted for the MEB the examiner documented that the CI reported no prior history of asthma, gastroesophageal reflux disease, sinus disease, nor tobacco use and, in addition, documented a history of seasonal allergies, and symptoms of prolong coughing spells, especially at night with breathing difficulty. The physical exam was normal. Specific directed asthma tests revealed a normal chest x-ray, normal laboratory studies and a positive methacholine challenge test; FEV1 dropped 21%, which was consistent with moderate to severe bronchial hyperreactivity. The examiner diagnosed asthma, moderate persistent with the use of daily medications. The VA Compensation & Pension (C&P) examiner documented the CI having asthma attacks once a month and notated his medications of Formoterol (a long acting bronchodilator), Flunisolide (an anti-anti-inflammatory), and Albuterol inhaler (a short acting bronchodilator and Montelukast (an allergy/asthma medication) the physical exam was normal. The examiner diagnosed bronchial asthma.

The Board directs its attention to its rating recommendations based on the evidence just described. Both the PEB and the VA chose the same code, 6602, for rating the condition. The FPEB adjudicated the condition as EPTS and permanently aggravated rated at 30% with a 10% deduction for EPTS. The VA initially rated the condition at 10% based on the FEV1 alone of 93% predicted, despite documenting daily use of medications, then corrected this by increasing the rating to 30% effective 14 September 2006, the date the CI filed a claim for an increased rating. The Board’s main charge regarding this condition is the evaluation of the FPEB’s EPTS determination. The Board’s authority for recommending a change in the service’s EPTS determination is not specified in DoDI 6040.44, but is considered adjunct to its DoD-specified obligation to review service fitness adjudications. As with its consideration of fitness adjudications, the Board’s threshold for countering EPTS determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The Board’s recommendation must incorporate a probative value judgment between the disparate evidence from internal medicine and pulmonary consultative examinations. The probative value judgment has to acknowledge a normal tendency to maximize symptoms in the context of PEB or VA rating evaluations with their attendant secondary gain pressure, but the Board concedes the validity of all evidence unless contradicting evidence can be cited. The Board thus carefully deliberated its probative value assignment to these conflicting evaluations, and carefully reviewed the service file for corroborating evidence in the 12-month period prior to separation. The Board recognized the entrance service exam did not document childhood asthma, yet must acknowledge that this would have reflected only the information provided by the CI to that examiner; and, that he would have been disinclined to raise any barriers to entrance into military service and may have felt that the history was not significant enough to report. The Board also acknowledged the historical accounts documented by the in-theater internal medicine physician, the theater sick call providers, the aeromedical providers and the Landstuhl provider were also reflected only by information provided by the CI and that he would have been inclined to raise the childhood history described to remove any barriers from receiving appropriate care. Finally, while the Board did not have the childhood records in evidence for review, the Board concluded that both the PEB and FPEB documented childhood asthma after reviewing these records and represented this evidence accurately. The Board majority agreed to assign its probative value to the internal medicine consult and agreed the preponderance of evidence documented childhood asthma. The Boards next challenge was to determine if the 10% EPTS rating deduction assigned by the PEB was consistent with the VA Schedule for Rating Disabilities (VASRD). The VASRD provides rating guidance for asthma based on the number and severity of clinical exacerbations; the type and the frequency of medications used to treat the condition; and the results of objective pulmonary function testing (spirometry). The evidence reflected intermittent use of Albuterol while in high school prior to entry into service which is consistent with the 10% rating criteria for the 6602 code (FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy) The Board agreed that there was sufficient evidence to conclude that the CI did require daily treatment with one of the contemporary medications in order to maintain moderate control of his asthma while in service meeting the 30% rating criteria. The Board agreed with the 10% EPTS deduction concluded by the FPEB and all evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the FPEB’s rating decision for the asthma condition.

Other Contended Conditions. The CI’s application asserts that compensable ratings should be considered for posttraumatic stress disorder (PTSD). All of these conditions were reviewed by the action officer and considered by the Board. PTSD was not found in the core DES file. The Board makes note that this contended condition was derived from VA evaluations performed after separation (on 17 October 2007 and 6 December 2006), diagnosing a condition which was not addressed by the PEB. By policy and precedent the Board has limited its jurisdiction for recommending unadjudicated conditions as unfitting and subject to additional separation rating to those conditions which are evidenced in the core DES file. The core DES file consists of the MEB referral document (DA Form 3947), the PEB adjudication document (DA Form 199), the NARSUM (including any addendums or referenced examinations), the MEB physical exam, the commander’s statement, the physical profile(s), and any written appeals or internal DES correspondence. Contended conditions which are not eligible for Board recommendations on this basis remain eligible for submission to the Army Board for Corrections of Military Records (ABCMR).

Remaining Conditions. No other conditions were noted in the NARSUM, identified by the CI on the MEB physical, or found elsewhere in the DES file. Additionally tinnitus and sensorial hearing loss and several other non-acute conditions were noted in the VA rating decision proximal to separation, but were not documented in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. As discussed above, PEB reliance on the AR 635-40, B-10 service policy for rating asthma condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the asthma condition and IAW VASRD §4.97, the Board unanimously recommends no change in the PEB adjudication at separation or permanently. The Board unanimously agrees that there were no other conditions, specifically the contended PTSD condition, eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20111221, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXX, AR20120008885 (PD201200005)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.

This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl XXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA